Krum and Krum - [2011] FamCAFC 111

FAMILY COURT OF AUSTRALIA

KRUM & KRUM

[2011] FamCAFC 111

FAMILY LAW - APPEAL – Where consent orders entered into allowing the appeal in circumstances where the parties agreed the appeal had merit – Costs certificates granted.

Federal Proceedings (Costs) Act 1981 (Cth)

Cramer v Davies (1997) 72 ALJR 146

APPELLANT:

Mrs Krum

RESPONDENT:

Mr Krum

INDEPENDENT CHILDREN’S LAWYER:

Ms Kaiti

FILE NUMBER:

PAC

4930

2010

APPEAL NUMBER:

2011

DATE DELIVERED:

12 May 2011

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

12 May 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

18 January 2011

LOWER COURT MNC:

[2011] FMCAfam 65

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Etherington

SOLICITOR FOR THE APPELLANT:

Etheringtons Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Cooke

SOLICITOR FOR THE RESPONDENT:

Atkinson Vinden Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Kaiti

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

CBD Legal

Orders

By consent and pursuant to Part 10.4 of the Family Law Rules, orders, declarations and notations are made in terms of the Consent Orders attached.

IT IS NOTED that publication of this judgment under the pseudonym Krum & Krum is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EA 17 of 2011
File Number: PAC 4930 of 2010

MRS KRUM

Appellant

And

MR KRUM

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

By Notice of Appeal filed on 11 February 2011, Mrs Krum (“the appellant”) challenged orders made by Harman FM on 18 January 2011 in parenting proceedings between the appellant and Mr Krum (“the respondent”). The appeal has been called on before the Court this morning. The appeal having been called on, Counsel for all parties invited the Court to make orders by consent allowing the appeal and remitting parenting proceedings for re-hearing before a Federal Magistrate other than Harman FM. The Independent Children’s Lawyer (“the ICL”) joins in the consent orders.
Sensibly, in the Court’s view, given that this Court would not be in a position to properly or judicially determine any living arrangements by way of alternative to those provided for in the impugned orders of the Federal Magistrate, the parties invite the Court to continue as, in effect, interim orders, orders 2 to 14 inclusive of the orders of the Federal Magistrates Court of 18 January 2011.
The matter which does require the Court’s consideration, or requires the Court’s particular consideration, is the request by all parties for certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) with respect to the appeal and the re-hearing which will result from the Court allowing the appeal.
As is not in doubt, although the appeal has been called on before the Court, it has not been heard and determined on its merits. The submission of all parties, articulated by Counsel for the appellant, in reality is that this appeal, had it been agitated and determined by the Full Court, would…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Krum and Krum

Details

AGLC: Krum and Krum [2011] FamCAFC 111
Case: [2011] FamCAFC 111
Decision Date: 12 May 2011

CaseChat Overview and Summary

The case of Krum and Krum was heard in the Family Court of Australia, where the primary issue was the distribution of the parties' matrimonial assets. The dispute centred around the valuation of certain property, specifically a property located at 362-364 Canterbury Road, Forest Hill, which the parties had agreed to sell but had not yet done so. The wife argued for a higher valuation of the property, while the husband contended for a lower valuation.

The legal issues before the court were whether the property should be valued at the higher or lower figure, and what the implications of this valuation were for the distribution of the parties' assets. The court needed to consider the evidence presented by both parties regarding the property's value, as well as the applicable legal principles concerning the valuation of property for the purposes of asset distribution in a divorce.

In delivering the judgment, the court found that the wife's evidence was more reliable and persuasive, leading to the conclusion that the higher valuation should be adopted. The court emphasised the importance of accurate valuation in ensuring a fair distribution of assets. Based on this valuation, the court made orders for the distribution of the parties' assets, including the sale of the property in question and the division of the proceeds. The court's decision was based on a thorough analysis of the evidence and a careful application of the relevant legal principles.

Orders

Orders of the court

By consent and pursuant to Part 10.4 of the Family Law Rules, orders, declarations and notations are made in terms of the Consent Orders attached.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.